KEVIN PIPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Piper appeals the denial of his postconviction motion for ineffective assistance of counsel, claiming his plea was involuntary because counsel coerced him into accepting a guilty plea by demanding a $3,000 advance payment for trial and threatening vindictive sentencing. The court affirms the denial of some grounds but reverses the denial of ground one and remands for reconsideration with a proper affidavit.
The court reversed the denial of ground one because although the affidavit was technically insufficient and prejudice was not adequately alleged, the underlying allegations of counsel coercion regarding vindictive sentencing were not refuted by the record and deserved consideration. The court remanded for Piper to file an amended motion with a proper oath and adequate allegations of prejudice.
[1] An oath signed by a person other than the postconviction movant is generally insufficient to subject the movant to perjury for alleged falsities.
[2] A claim that counsel's ineffective assistance compelled an involuntary plea is not procedurally barred simply because the defendant entered a plea under oath.
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Join FLexlaw to unlock all legal intelligence“the oath is insufficient. The purpose of the oath is to subject the petitioner to the penalties of perjury should he knowingly misstate the facts.”
Explains the legal requirement that an affidavit in a postconviction motion must be signed by the movant personally to subject them to perjury penalties
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Join FLexlaw to unlock all legal intelligencePiper pleaded guilty to three counts of trafficking in methamphetamine in exchange for fifteen years' imprisonment. He did not directly appeal but fil…
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Kevin Piper appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We affirm the denial of grounds two and four, as well as the dismissal of ground three, without comment. We reverse the denial of ground one and remand for further proceedings.
Mr. Piper pleaded guilty to three counts of trafficking in methamphetamine in exchange for a total of fifteen years’ imprisonment, day for day. He did not directly appeal his judgment and sentences but timely filed this rule 3.850 motion. In ground one, Mr. Piper claimed that counsel’s ineffective assistance compelled him to enter an involuntary plea. Specifically, he alleged that he accepted the State’s offer because his counsel told him he would not go to trial without a $3000 advance payment. When he told counsel he could not afford that amount, his counsel handed him a plea form. Counsel told him that he had to sign it because “the State let their witnesses go and the Court would be mad and sentence him to 45 to 90 years.” Mr. Piper asserted that the “factual scenario clearly impaired the volun-tariness of defendant’s decision to plea, instead of proceeding to a jury trial on this matter.” The motion contained an oath signed by an unknown person “For KP /s/.”
The postconviction court adopted most of the State’s response in denying this ground, providing two reasons. First, the postconviction court correctly noted that the oath is insufficient. The purpose of the oath is to subject the petitioner to the penalties of perjury should he knowingly misstate the facts. See State v. Shearer, 628 So.2d 1102 (Fla.1993). An oath signed by a person who is not the postconviction movant is generally insufficient to subject the movant to perjury if he alleged any falsities.1
Second, the postconviction court determined that the ground was “procedurally barred as raising defenses that [Mr. Piper] knew of and waived as a result of his plea under oath.” Relying upon Gidney v. State, 925 So.2d 1076, 1077 (Fla. 4th DCA 2006), the court held that this ground was an attempt to go behind his plea and that he signed the written plea form, which stated that he had not been coerced into his decision.
However, Gidney’s breadth is not quite so broad. In that case the Fourth District held that the defendant was prohibited from raising three of his claims in a post-conviction motion because they were “possible defenses that he abandoned when he entered his plea.” Id. at 1077. However, Mr. Piper did not raise defenses but asserted that his counsel put him in fear of vindictive sentencing if he chose to go forward to trial. Moreover, Mr. Piper’s assertion that counsel put him in fear of a vindictive sentence from the trial court if he disregarded counsel’s advice by proceeding to trial is not refuted by the record.
Consequently, we reverse the denial of this ground. As previously noted, Mr. Piper’s oath is insufficient. Additionally, he fails to sufficiently allege prejudice. See Ey v. State, 982 So.2d 618, 621 (Fla.2008) (“With regard to guilty and nolo contendere pleas, prejudice is satisfied by *904demonstrating ‘a reasonable probability that but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).”). Therefore, on remand, the post-conviction court shall issue a nonfinal order striking ground one with leave to amend within a reasonable period. See Spera v. State, 971 So.2d 754 (Fla.2007); Lawrence v. State, 987 So.2d 157, 158-59 (Fla. 2d DCA 2008). If Mr. Piper fails to file an amended ground with a proper oath within that period, the postconviction court may enter a final order that is a disposition on the ground’s merits. If Mr. Piper timely files an amended ground with a proper oath, the postconviction court shall consider the ground and dispose of it in a final order. See Koszegi v. State, 993 So.2d 133,134 (Fla. 2d DCA 2008).
Reversed and remanded.
WHATLEY and LaROSE, JJ., Concur.
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Citator
Cited By
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Smith v. State, 100 So. 3d 201 (Fla. 2d DCA 2012)…directions that the postconviction court address the merits of Mr. Smith’s amended motion. The postconviction court struck Mr. Smith’s original rule 3.850 motion for failure to contain an oath and gave him thirty days to amend. See Piper v. State, 21 So. 3d 902, 904 (Fla. 2d DCA 2009). Mr. Smith filed an amended motion, but it still failed to contain the required oath. Consequently, the postconviction court summarily denied the amended motion. Mr. Smith then filed a motion for rehearing to which he attache…
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Heare v. State, 283 So. 3d 390 (Fla. 2d DCA 2019)…sively refuted by the record. Under settled law, Mr. Heare is entitled to an opportunity to amend his motion to remedy those deficiencies. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So. 2d 754, 755 (Fla. 2007); see also Piper v. State, 21 So. 3d 902, 903-04 (Fla. 2d DCA 2009) (reversing under Spera for leave to amend a postconviction claim that lacked a sufficient oath). Accordingly, we must reverse the postconviction court's order to that limited extent. Because Mr. Heare has…
Authorities Cited
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985)
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- State v. Shearer, 628 So. 2d 1102 (Fla. 1993)
- EY v. State, 982 So. 2d 618 (Fla. 2008)
- Mason v. State, 987 So. 2d 157 (Fla. 5th DCA 2008)
- Gidney v. State, 925 So. 2d 1076 (Fla. 4th DCA 2006)
- Grogin v. State, 993 So. 2d 133 (Fla. 4th DCA 2008)